Israel’s High Court of Justice managed to stop one of the largest Museum Deaccession Sales in the country’s history.
What is the petition about? Who joined the petition? How long did it take? Can you explain how did it start?
The Hashava Foundation petitioned the Israeli High Court of Justice in order to stop the auction of items from the collection of Jerusalem's L.A. Mayer Museum of Islamic Art at Sotheby's London. We did this because we maintain that the process of deciding on the auction itself, the process of deaccessioning the items, and the process of their export were all executed by the museum, the Antiquities Authority and the Ministry of Culture in a manner that in our opinion violated the regulations governing these types of actions. These are not just technical issues, but rather deal with the question of transparency in making decisions that impact the cultural heritage available to the Israeli public – by institutions that exist to serve precisely that purpose.
We learned about the auction of 268 lots from the press in mid-October, a little less than two weeks or so before the auction date itself. The news caused quite a ruckus, and both the President of Israel and the Minister of Culture intervened and were able to cause the museum to delay the auction by a month. However, at this point the Hashava Foundation suspected that the Ministry of Culture would not be able to prevent the sale, mainly due to what the Foundation saw as the Ministry's incorrect interpretation of its own regulatory powers. We decided to harness our expertise in Israeli law regarding cultural assets, and to bring the issue before the High Court of Justice, where we could explain the errors which led the regulating authorities to allow the museum and Sotheby's to go forward with the wrongful sale.
Israeli case law requires that before filing a court petition against a public body, the petitioner needs to turn to the public body first and give it the opportunity to fix its perceived mistakes or try to convince the petitioner why it was correct to act as it did. When we approached them, their answer was that our intervention was not required, because the issue was already being addressed by them, and they were examining various questions, including the scope of the Museums Act. At this point we realized that the Ministry did not believe in its own authority to prevent the sale altogether, as we did, and that this may be a rare opportunity to change the way both the government, as well as the museums, perceive their respective roles, duties and rights. As a result, we filed the petition with the High Court of Justice, which immediately ordered the respondents to submit their positions, and set a hearing date for one week before the new auction date. To our great surprise we discovered that when push came to shove, the Ministry of Culture adopted our position in whole, whichis rare in such petitions. This helped put a lot of pressure on the museum and Sotheby's, and confirmed to the court that our petition was justified and well considered.
Having said that, the hearing at the High Court of Justice was challenging. The Justices before whom the case was heard were clearly very concerned with the contractual obligations between the museum and Sotheby's and wanted to ensure that neither party suffer significant financial loss as a result of a lack of fulfillment of the sale contract. In the end, the Justices, also understanding the highly problematic ramifications of allowing the sale – the presiding Justice stated that if the parties were unable to come to agreement, the court would be required to open a "pandora's box" – asked the parties to negotiate in an effort to significantly curtail the scope of the sale. At the Hashava Foundation's request, the Justices noted that any proceeds from such a sale ought to be dedicated to the museum itself.
At this point, the parties started a complex set of negotiations that ultimately lasted almost three months. The Hashava Foundation contributed to these efforts, suggesting ideas which in the end were almost fully adopted. The museum was able to connect with the Qatari Al Thani Collection Foundation, which very admirably took on itself to pay off Sotheby's fees, and allow the collection to return home, as well as committing to financially support the museum for the next decade, all while laying the groundwork for international, cross-cultural collaborations.
We also accomplished a significant achievement, which is expressed in the court's final determination. The court stated that the petition raised important legal and moral issues regarding the sale of museum collection items that are culturally valuable, and opined on the need to comprehensively regulate this field. We see this as a leap towards a real change in the way museums conduct themselves when it comes to maintaining their collections.
Can you explain the story of this auction about hundreds of items from the collection of the L.A. Mayer Museum for Islamic Art?
This is where the complexities really start. In order to really understand what was behind the intended sale of almost 7% of the museum's collection, one first has to understand the corporate structure of this museum, which is quite unusual.
The museum itself is a complex hierarchy of a number of trusts and foundations that mostly operate outside of Israel, which were initially founded by the late Vera Salomons, the museum's founder and benefactor, in order to support the museum. Over time, most of these got "gobbled up" by the most solid of them, which at the time of the consolidation also arranged to transfer the museum's collection to itself. Thus, today, there is this strange constellation of a museum whose land, building, and collection are all owned by a foreign foundation, and the museum organization itself, which is incorporated in Israel, only manages the collection, organizes the activities of the museum and otherwise acts as an administrative body. As it happens the board of the foreign foundation also controls the board of the Israeli organization which administers the museum. As a result, a foreign foundation controls literally every action of the Israeli museum. This is problematic in that it can lead to conflicts of interest and to decision making that doesn't conform to the norms of corporate governance. For instance, the actual decision made by the Herman de Stern Stiftung to sell off parts of the collection was not documented, and there was no protocol of a meeting to show for it. At the same time, in the protocol of the museum's board meeting, this decision is described as a decision by the Stiftung which is simply being declared to the museum board, as one of the last items in the agenda, as a matter of fact. And just to be clear, this is not a strictly private museum which owes no special duty to the public – the situation here is different. A recognized museum such as this one has a much higher bar to meet in terms of its corporate governance and public duties.
In any case, several contentions were made by the museum and the Herman de Stern Stiftung as to why the sale was necessary. The first and most important of these related to the Lichtenstein-based foundation's claim of dwindling resources. Another argument, made by the museum's director, was that he wanted to change the collecting priorities, to exclude any items of a violent nature, and include only those reflecting peace.
So, we have a public institution that receives government support, but which is actually totally opaque to review. In addition, the claim of dwindling resources by the Stiftung would seem to indicate poor corporate governance. If the claim is accurate, how did this non-profit foundation, whose primary purpose is to fund and benefit this particular museum, end up using so much of its resources that it has to sell off 7% of the museum's collection? Why didn't the Stiftung and the museum – seeing that they were approaching such a financial position – engage in more aggressive fundraising methods? These are serious questions of fiduciary duty, which, if the Stiftung's claims are to be taken seriously, would on their face seem to disqualify the organization's board members from continuing in their roles.
As to the director's claims, this sort of decision in a public or semi-public body requires a decision by the board. No protocol of such a decision exists. There is no question that curatorial tastes change, and that is certainly reflected in both exhibition programs and in the nature of new acquisitions. However, to try to entirely rid such a collection of all such important items is to seriously injure the collection as a whole.
To return to the sale: the museum, the Stiftung and Sotheby's started working on the sale about two years before the proposed sale date, and came to an agreement as to which items would be sold, and under what terms, in the spring of 2020. Despite their claims otherwise, it is clear that many of the items were chosen for their potential sale value, rather than because of their diminished value in the collection – a clear violation of museum ethics as relates to deaccession and sales from collections.
In August of 2020 Sotheby's, on behalf of the museum, submitted to the Antiquities Authority a list of about half of the works intended for export and sale – that same half which are automatically considered antiquities according to the law. The other half were not submitted for any regulatory review, and thus the Minister was denied the opportunity to act in their regard.
Regarding the half that was processed by the Antiquities Authority, the list was sent to an expert in the relevant field for review and authorization. The expert determined that the entire collection was of tremendous cultural and historic importance and was ineligible for export for sale. Despite this, the manager in charge of the review returned the question to the expert, instructing her to limit her advice only to items originating within the area of Israel's territorial sovereignty. Despite her protests at this instruction, and her repeated concerns that it was impossible to allow this export, she eventually wrote a report indicating two items which met the extremely narrow instructions which she was given. Given the now minor restriction approved by the Antiquities Authority, less than a handful of items were removed from the list of hundreds of items, and all the rest were approved for export and indeed shipped to London. Sometime between this occurrence and mid-September, the Ministry got wind of what was going on, and raised the cry, but it was already too late – all the relevant items had already been shipped abroad.
If we're talking about the export lists, this is the place to mention that while litigating this petition, our research uncovered a shocking fact. As I mentioned, the originally scheduled sale for late October had 268 lots. The lists that were submitted to the Antiquities Authority and to customs were also numbered according to these lots. What we discovered by cross-checking every lot in the catalogue with the export lists and the museum registry, is that many lots contained multiple, separately registered, museum pieces. Thus, the 268 lots actually represented almost 400 individually registered items. No-one else along the line noticed this – not the Antiquities Authority or their expert, not customs, not the Ministry of Culture. We believe this discovery is one of the elements that convinced the court to specifically note in its judgment adopting the negotiated settlement, that it was incumbent on Sotheby's to return all of the items to the museum, without delay – as well as awarding us expenses. In its decision to award the Hashava Foundation expenses, the court noted that the very fact that we submitted our petition brought about the cancellation of the sale. This is all the more significant when one considers that all of the items had already left the country after receiving export licenses, which raised serious questions regarding the court's jurisdiction.
Why is it an important achievement in the protection of Cultural Assets for the Israeli Public?
Well, first of all, the proposed sale is believed to be the largest ever single deaccessioning and attempt to sell from a museum collection in Israel's history. So, the fact that this was stopped is an astonishing achievement in and of itself. No less importantly, the cultural value of many of the items, is of the highest grade, despite the museum's claim otherwise. So, yes, ensuring that almost 400 of these works will remain in Israel, in the L. A. Mayer Museum for Islamic Art, so that they can be enjoyed by the public and be available for research and other public purposes is a truly important achievement for the protection of cultural assets for the Israeli public. And not only the Israeli public: this is one of the most important museums in its field, and ensuring that its collection remains intact has important ramifications for making these items available for study for researchers around the world.
Finally, the mere fact that we petitioned the High Court of Justice puts other Israeli cultural institutions on notice that the public is aware of what they are doing, is paying attention, and expects and that these institutions behave according to law and ethically – with transparency and with clear indications that their actions are in the public interest.
“Alongside this success, the Hashava Foundation hopes and expects that the Antiquities Authority, the Ministry of Culture and the Knesset will implement the clear insights gained in this case and will work to change the relevant procedures, regulations and legislation in order to prevent such cases in the future?” Can you explain what will be the impact of such an agreement in the future for Art and provenance for Israel?
As the story of this case has made clear, there are several separate but interrelated problems that the regulator faced in dealing with the deaccession of these items from the museum's collection and their export for sale. The first problem is that the Antiquities Authority did not properly exercise its authority to prevent the export for sale of the deaccessioned items. Israel's Antiquities Law clearly defines what is an antiquity, and the Antiquities Authority misinterpreted it. The unfortunate fact is that the Antiquities Authority simply misinterpreted the law and thought that its hands were tied because of a territorial limitation – which in fact does not exist. Therefore, the Authority's management decided that it could not intervene, despite the pleas of the expert that the Authority itself asked to review the items and determine which were of such historical importance to void their export. The second major problem is the law itself. One of the main questions in this case dealt with the integrity of the decision-making process. The fact of the matter is that the current regulations are full of loopholes that more-or-less allowed the museum to do all those things that it did. So, we have two major regulatory problems – first, that governmental oversight regarding the export for sale of antiquities, based on current law, was ineffective and misapplied, and second, that the legislation and regulations themselves need to be updated to provide for more effective oversight of museums in the first place.
As I mentioned earlier, when the Hashava Foundation filed its petition with the High Court of Justice, it listed as defendants not only the museum and the auction house, but also – and even primarily – the government authorities which had not done their part to properly regulate and oversee the museum's operations, and which had erroneously and egregiously allowed for the export of almost 7% of the museum's collection. It was our hope that the petition would not only bring a stop to the sale, which was the immediate and most pressing concern, but also that the court would enjoin the state to start properly enforcing its own regulations and where these do not suffice – to establish new regulations accordingly. And indeed, the petition was truly an astonishing success. As I mentioned before, although due to the settlement, the regulatory aspect was not ruled upon, the High Court did state, and this is not done often, that the petition raised regulatory issues that require addressing.
Can you explain the aim of the Hashava Foundation?
The Foundation’s primary focus is in regulating the mechanisms for identifying and locating artwork and Judaica looted from their owners during the Nazi period and promoting restitution to their heirs. The Foundation seeks to accomplish its goals, which are of unparalleled importance for achieving justice for the victims of the Holocaust and their heirs, by focusing on promoting public awareness, legislative and regulatory reform, as well as undertaking specific projects to facilitate restitution in practice.
The Hashava Foundation approaches this primary focus with the understanding that in order to be successful, it is necessary to promote a comprehensive framework of legislation and regulation for the administration of cultural property in Israel. Among other measures, the Foundation aims to ensure that Israel’s laws are in accord with international treaties and declarations,. These goals spring from a recognition that cultural property is distinct from other types of property as its value is not only material, but also sentimental, historic, moral, symbolic and patrimonial. Whether cultural property is held privately or by institutions, the public interest in ensuring that it is held by the most legitimate party, and, if looted, returned to its rightful owner, must be protected.
The new projects for the Hashava Foundation?
In Israel, there is a significant problem with museum holdings, in that scant provenance research has been done regarding artworks that are known to have been looted during the Holocaust, or for which there are indications that this might have been the case. All of the important art museums in the country are known to have such artworks, and yet, despite the fact that we are in Israel – a country that absorbed half of the survivors of the Holocaust and considers itself the homeland of the Jewish People – this issue is largely ignored when facing these questions inwardly.
This being the case, the Hashava Foundation has embarked on a project to assist Israeli museums with Nazi-era provenance research. This project involves training volunteers to perform the necessary cataloguing and provenance research, as well as using the services of professional provenance scholars, in order to help the museums do what they either cannot, or will not, do on their own.
Thanks Niv Goldberg
Caroline Cassin
#theartlawlover #restitution #artprovenance Hashava Foundation | Restituting Justice